2019 Trafficking in Persons Report: Nepal

NEPAL: Tier 2

The Government of Nepal does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so. The government demonstrated overall increasing efforts compared to the previous reporting period; therefore Nepal remained on Tier 2. These efforts included identifying significantly more male trafficking victims than in previous years and creating and funding a law enforcement bureau dedicated solely to human trafficking crimes—the Anti-Trafficking-in-Persons Bureau (Anti-TIP Bureau). However, the government did not meet the minimum standards in several key areas. Its laws do not criminalize all forms of forced labor and sex trafficking, and despite a large number of Nepali male trafficking victims overseas, government protection efforts disproportionately focused on female victims. Official complicity in trafficking offenses remained a serious problem, both direct complicity as well as negligence, and the government did not report significant efforts to address it, even after a 2017 parliamentary call to take action. Officials encouraged migrant workers exploited abroad to register cases under the 2007 Foreign Employment Act (2007 FEA), which criminalized fraudulent recruitment, rather than refer cases to police for investigation of labor trafficking.

PRIORITIZED RECOMMENDATIONS

Investigate allegations of official complicity in trafficking crimes and hold perpetrators criminally accountable. • Amend the Human Trafficking and Transportation (Control) Act (HTTCA) to bring the definition of human trafficking in line with the 2000 UN TIP Protocol. • Finalize and train front-line responders on standard operating procedures (SOPs) to identify and refer trafficking victims to services, especially male labor trafficking victims. • Accede to the 2000 UN TIP Protocol. • Establish standard operating procedures for law enforcement—including the Anti-TIP Bureau, Nepal Police Women’s Cells (NPWC), and Central Investigation Bureau (CIB)—to investigate human trafficking cases, including referrals between agencies. • Increase investigations, prosecutions, and convictions of trafficking offenses, including criminal investigations into labor recruiters and sub-agents who engage in labor trafficking. • Expand access to and availability of victim care, including shelter and repatriation, for all victims, especially males and Nepalis exploited overseas. • Increase staff, training, and resources to the Department of Foreign Employment (DFE) to facilitate full implementation of the low-cost recruitment policy, including regular DFE monitoring for compliance. • Implement the victim-witness protection provisions of the HTTCA. • Remove the HTTCA provision that allows victims to be fined if they fail to appear in court or be held criminally liable for providing testimony contradicting their previous statement. • Lift current bans on female migration and engage destination country governments to create rights-based, enforceable agreements that protect Nepali workers from human trafficking. • Provide documentation to Harawa-Charawa communities and internationally recognized refugees and asylum-seekers to allow to them to work, attend school, and access social services.

PROSECUTION

The government maintained mixed anti-trafficking law enforcement efforts. The 2007 HTTCA criminalized some forms of sex trafficking and labor trafficking. The HTTCA criminalized slavery and bonded labor, but did not criminalize the recruitment, transportation, harboring, or receipt of persons by force, fraud, or coercion for the purpose of forced labor. It criminalized sex trafficking but, inconsistent with international law, required a demonstration of force, fraud, or coercion to constitute a child sex trafficking offense, and therefore did not criminalize all forms of child sex trafficking. Prescribed penalties range from 10 to 20 years’ imprisonment and a fine, which were sufficiently stringent and, with respect to sex trafficking, commensurate with those prescribed for other serious crimes, such as rape. Additionally, the 2002 Bonded Labor (Prohibition) Act criminalized bonded labor and the Child Labor Act criminalized forced child labor; however, neither law prescribed sufficiently stringent penalties. The 2007 FEA criminalized fraudulent and deceptive labor recruitment. For the fourth consecutive year, the National Committee for Controlling Human Trafficking (NCCHT) continued drafting revisions to the HTTCA to bring the definition of human trafficking in line with international law, including a workshop to solicit NGO input. The proposed amendment awaited approval from the Ministry of Finance at the close of the reporting period.

The NPWC conducted 313 investigations under the HTTCA during the Nepali fiscal year, compared with 227 cases in the previous fiscal year. The 313 cases involved 546 alleged traffickers, of whom 447 had been arrested and 99 remained at large. NPWC investigated crimes in which women and girls were the primary victims; other police investigative units handled crimes involving male victims. The CIB investigated 13 transnational trafficking cases and arrested 14 suspects between April and December 2018, compared with eight transnational cases during the same period in 2017. The government initiated prosecutions in 285 cases during the fiscal year and continued prosecution of 190 cases it had initiated in previous years, compared with initiating prosecutions in 303 cases and continuing prosecutions in 184 cases in the previous fiscal year. Officials did not disaggregate data to distinguish between sex and labor trafficking cases. At the district level, courts convicted 213 traffickers during the fiscal year, a significant decrease from 274 and 262 trafficking convictions during the previous two fiscal years. District courts acquitted 113 accused, compared with 233 acquittals the previous fiscal year. The government did not report sentences prescribed to convicted traffickers.

In May 2018, the government allocated limited funding to create the Anti-TIP Bureau, mandated by the HTTCA to investigate all trafficking crimes. As of March 2019, police had filled only 36 of 171 permanent positions in the central bureau, primarily investigators with nationwide jurisdiction. The Anti-TIP Bureau was not yet investigating cases by the close of the reporting period, but staff had begun developing internal SOPs. Police lacked the staff, resources, and training required to patrol Nepal’s nearly 1,100-mile border with India, where significant transnational trafficking occurred; therefore, NGOs conducted the majority of the checkpoint inspections, focusing almost entirely on intercepting female potential trafficking victims. The government had standard training for labor, immigration, judicial, law enforcement, and foreign employment officials that included anti-trafficking elements. During the reporting period, the attorney general’s office trained public prosecutors on victim-centered investigations and prosecutions, and the Ministry of Women, Children, and Senior Citizens (MWCSC) trained law enforcement and civil society on trafficking trends and emergency victim protection. Despite these trainings, police lacked sophisticated investigative techniques and skills to interact in a victim-centered way with trafficking survivors; these deficiencies undermined prosecution efforts. In addition, law enforcement and labor officials continued to demonstrate a lack of understanding of the differences between labor violations and labor trafficking, including how to report and investigate allegations.

Legal experts stated prosecutors could pursue a case under both the HTTCA and the 2007 FEA for transnational labor trafficking and foreign employment fraud, respectively; however, prosecutors regularly refused to do so, believing such action would violate the prohibition against double jeopardy. Many migrant workers remained unaware of the process for obtaining redress, including in cases of trafficking. DFE officials continued to advise abused migrant workers to register complaints under the 2007 FEA rather than notify police. Many victims of transnational labor trafficking with knowledge of the redress process still preferred to submit claims for restitution through the 2007 FEA in lieu of lengthy criminal prosecutions under the HTTCA, citing the desire to avoid the stigma associated with trafficking, the higher potential for compensation through the 2007 FEA, and the lack of time and funding necessary to access the centralized institutions charged with providing redress.

The government did not report any new investigations, prosecutions, or convictions of government employees complicit in human trafficking; however, corruption and official complicity in trafficking crimes remained significant concerns, inhibiting law enforcement action during the year. NGOs alleged some police and political party leaders were complicit in sex trafficking in conjunction with their financial involvement in the adult entertainment sector (AES). Observers continued to report some traffickers, including owners of adult entertainment establishments and exploitative orphanages, enjoyed impunity due to personal connections with politicians or by bribing police. Civil society alleged local officials facilitated the falsification of age documents for girls that traffickers exploited in sex trafficking within Nepal and abroad. Traffickers reportedly bribed some government officials to include false information in genuine Nepali passports or provide fraudulent documents to prospective labor migrants or foreign employment agents. NGOs had concerns that because a number of government officials, including parliamentarians, maintained close ties to foreign employment agencies, such officials might have a conflict of interest in approving migrant-friendly practices, such as prosecution of abusive recruitment agencies and increasing protections for migrant workers. In August 2017, a parliamentary committee stated due to the negligence or complicity of immigration officials and police, girls and women had departed the international airport without completing the required exit procedures; the committee stated that up to 60 percent of Nepali domestic workers in the Gulf were working illegally without proper visas and safeguards. The committee called on the government to take action against these immigration officials, but the government had not addressed the issue at the close of the reporting period. In November 2017, a parliamentary commission arrested the Director General of DFE and two DFE officials for allegedly attempting to collect a bribe from a foreign employment agency; law enforcement released the three officials on bail or their own recognizance, and the case was pending at the end of the reporting period. In December 2017, police arrested a recently elected local official for allegedly exploiting two Nepali girls in sex trafficking in India; Nuwakot District Court sentenced the official to 37 years and six months and a fine of 250,000 Nepali rupee (NPR) ($2,240).

PROTECTION

The government maintained efforts to identify and protect internal female trafficking victims, but protection efforts for male victims and trafficking victims abroad remained weak. The government did not have SOPs for victim identification and referral to services, although NPWC had internal guidelines on the identification and treatment of victims and MWCSC continued drafting SOPs on victim identification, referral, and data collection. Authorities did not systematically track the total number of victims identified, but NPWC reported identifying 546 victims connected to the 313 trafficking investigations, an increase from 368 victims identified the previous fiscal year. Of NPWC’s 546 identified victims, suspected traffickers subjected 106 victims to sex trafficking and 209 to labor trafficking; reports did not specify the type of trafficking for the other 231 victims. The 546 victims included 180 victims younger than age 18 and 119 males identified in three cases—a significant increase from the past year, when officials identified only four male victims. NPWC did not disaggregate domestic versus transnational trafficking. From April to December 2018, CIB identified an additional 53 child trafficking victims, many of whom traffickers had exploited in sex trafficking in India, compared with 57 transnational trafficking victims identified during the same period in 2017. NGOs identified 176 Nepalis in India—146 women and 30 men—who had allegedly paid smugglers for transportation to Burma and then to various countries in the Middle East, where NGOs alleged they might have faced labor or sex trafficking. Officials’ poor understanding of trafficking and the lack of SOPs hindered proactive identification, especially among returning male migrant workers exploited abroad.

Although the government had national minimum standards for victim care and referral to services, referral efforts remained ad hoc and inadequate. NPWC typically referred trafficking victims to One-Stop Crisis Management Centers, government-run emergency shelters for victims of trafficking and gender-based violence, or to various NGOs for shelter, medical, and legal services. While NGOs reported the rate of referral from law enforcement increased, the government did not report how many victims it referred to services. With MWCSC support, NGOs maintained 10 rehabilitation homes, 36 emergency shelters, and 36 community service centers for female victims of gender-based violence, including trafficking. It did not open any new centers, compared with opening two new rehabilitation homes, 19 emergency shelters, and 19 community centers during the previous reporting period. In the 2018-2019 fiscal year, the government allocated the same amount of funding for these shelters as in the 2017-2018 fiscal year, 10 million NPR ($89,610), although the funding was cumulative and the fund had approximately 19.3 million NPR ($172,940) at the beginning of the year. MWCSC provided NGOs with funding for shelter staff, some facility expenses, and victim assistance such as legal and psychological support; however, NGOs reported it only disbursed this funding when NGOs requested reimbursement. An international donor constructed a temporary shelter for up to 30 women and child victims of crime. MWCSC also supported an NGO-run long-term shelter for female victims of violence. Unlike in past years, MWCSC did not allocate dedicated funds for the protection and rehabilitation of male trafficking victims, although other sources of funding could be reallocated for that purpose. Nonetheless, international organizations reported male victims and victims of labor trafficking frequently did not receive services. An NGO ran one shelter for men in Kathmandu. Victims had the ability to seek restitution from traffickers or back wages from a rehabilitation fund if the government was unable to collect fines from traffickers under the HTTCA. In previous reporting periods, district courts in Kathmandu, Bhaktapur, and Chitwan ordered their respective district committees for controlling human trafficking (DCCHTs) to provide restitution to trafficking victims from the fund, and DCCHTs had initiated this process for some victims in previous reporting periods. MWCSC did not report if any victims received restitution.

During the reporting period, four of 26 judges in the Kathmandu and Bhaktapur District Courts instituted victim-friendly courtrooms and practices, including allowing victims to provide testimony via camera. Police continued efforts to pay for victim and witness transportation and lodging during judicial hearings; authorities did not report if any trafficking victims benefited from these services. Overall victim-witness protection mechanisms and the practices of police and justice officials remained insufficient. Victims continued to report challenges in providing testimony, including open doors to rooms where victims provided testimony via camera, threats from perpetrators, and the lack of compensation or lack of ability to collect compensation when awarded. Notably, resource limitations impeded the provision of a victim’s right to police protection, and observers stated victims were reluctant to file criminal complaints under HTTCA in part because of personal or family safety concerns. A 2015 amendment to the HTTCA that reinstated a provision allowing victims to be fined if they failed to appear in court or to be held criminally liable for providing testimony contradicting their previous statements also impeded victim protection. The government did not have legal alternatives to the deportation of foreign victims.

Government services for its nationals exploited abroad remained inadequate compared to the scope of the problem. The 2007 FEA required the government to appoint labor attachés in countries with more than 5,000 registered Nepali migrant workers to facilitate claims of abuse, exploitation, and repatriation. Due to the cost of the attachés, however, they were not present in all required countries. In addition, migrant workers reported attachés did not provide adequate information on how to obtain support or file official grievances against their exploitative employers. Nepali embassies in Bahrain, Kuwait, Malaysia, Oman, Qatar, Saudi Arabia, and United Arab Emirates could provide emergency shelter for vulnerable female workers, some of whom were trafficking victims, but the embassies did not provide statistics on the number of workers assisted. The Foreign Employment Promotion Board (FEPB) acknowledged shelters lacked sufficient space, staff, and resources to meet the high demand for assistance. FEPB collected fees from departing registered migrant workers for a welfare fund to provide repatriation and one year of financial support to families of injured or deceased workers, which could include trafficking victims. During the fiscal year, the fund repatriated 64 migrant workers, an increase from 50 the previous year, and repatriated the bodies of 823 Nepalis who died while employed abroad. It was unknown how many of those repatriated were trafficking victims. FEPB could also repatriate unregistered migrant workers by requesting funds through the finance ministry on an ad hoc basis, but it could not provide any other financial support or services to unregistered workers. DFE maintained an online application for migrant workers facing abusive or untenable situations overseas, or someone on the migrant worker’s behalf, to file a request with officials for repatriation. While DFE reported an increased number of requests in 2018, compared to 227 requests between December 2016 and January 2018, it did not report the number of requests, how many requests it fulfilled, or how many stemmed from trafficking crimes. MWCSC had additional funds it could allocate to Nepali embassies to repatriate trafficking victims. The funds covered food and travel expenses for the trafficking victim and an accompanying embassy officer. MWCSC reported spending 9.05 million NPR ($81,090) for trafficking victim repatriation from at least four countries during the fiscal year. NGOs bore the primary cost of repatriating Nepali trafficking victims from India.

PREVENTION

The government maintained efforts to prevent human trafficking. The government operated 732 local anti-trafficking committees (LCCHTs) and funded them through the DCCHTs, but it did not create any new committees during the reporting period. MWCSC did not report how much funding it allocated to DCCHTs during the fiscal year for prevention and protection services. While the NCCHT continued to meet with and train officials from the DCCHTs, observers noted the need for improved coordination between the NCCHT, DCCHTs, and LCCHTs. A January 2018 MWCSC-led review of the 2012-2022 anti-trafficking national action plan revealed the government had implemented less than one-third of the plan’s prosecution and capacity building objectives. NCCHT did not report further implementation of the plan during the reporting period. MWCSC issued its sixth report on the government’s anti-trafficking efforts, and the National Human Rights Commission’s Office of the Special Rapporteur on Trafficking (OSRT) in Women and Children issued its ninth report on human trafficking. Officials noted OSRT had declined in efficacy, and its top position has been vacant for several years. The government conducted public awareness campaigns throughout the country, sometimes in partnership with NGOs or international organizations. Special committees to monitor the AES for abuses remained active in nine districts. Observers stated they had limited effectiveness, however, due to a lack of funding and legislation to establish a formal role. Police continued regular inspections of such enterprises. Kathmandu police operated a toll-free child help hotline that can handle reports of suspected trafficking cases; police did not report if it identified any traffickers or victims from the hotline during the reporting period.

The government’s 2015 labor migration guidelines include a policy requiring foreign employers to pay for visa and transportation costs for Nepali migrant workers bound for Malaysia and the Gulf states and restrict agency-charged recruitment fees to 10,000 NPR ($90). In April 2017, DFE issued a directive to recruitment agencies to demonstrate their adherence to the policy; by September 2017, 750 of 1,097 agencies had fulfilled the requirement. DFE had fined 30 agencies between 50,000-100,000 NPR ($450-$900) for lack of adherence the previous reporting period, but did not report any similar enforcement during the reporting period. Both NGOs and government officials noted the monitoring mechanism was ineffective to address non-compliance; employment agencies regularly charged migrant workers fees above the 10,000 NPR ($90) limit. During reporting period, DFE opened offices in all seven provinces to increase prospective migrant workers’ access to foreign employment-related services. The government continued mandatory pre-departure trainings for migrant workers, but they were only held in a few districts and did not address the consular services or mechanisms for redress available while abroad, limiting their utility. In November 2018, the government began offering free skill tests for returned migrant workers and provided certifications for skills obtained abroad. FEPB monitored and reported on labor violations, and referred cases to DFE and the Foreign Employment Tribunal for adjudication and penalization; FEPB did not report if it referred any cases during the reporting period. The government maintained its ban on migration of female domestic workers younger than age 24 to Gulf States and mothers with children younger than two. Observers noted this ban increased the likelihood such women would migrate illegally and therefore increased overall vulnerability to trafficking.

The government did not make efforts to reduce the demand for commercial sex acts or forced labor. The government adopted a second iteration of its National Master Plan to End Child Labor, (2018-2028) that prioritizes ending the worst forms of child labor, including forced child labor. However, NGOs reported the Department of Labor (DOL) remained reticent to take meaningful action against perpetrators of child and forced child labor. While labor inspectors identified and removed 75 child laborers from situations exhibiting indicators of trafficking during the reporting period, DOL did not report if it referred any employers for criminal investigation and/or issued any administrative penalties. Furthermore, NGOs reported DOL encouraged mediation over prosecution in cases of labor violations, including forced child labor. Violators typically paid small amounts of compensation to victims in lieu of administrative or criminal prosecution. The government provided anti-trafficking training to its troops prior to their deployment as peacekeepers. The government did not provide anti-trafficking training to its diplomatic personnel. Nepal is not a party to the 2000 UN TIP Protocol. During the reporting period, a Ministry of Home Affairs-led committee researched the impact of ratifying the Protocol and officially proposed to the prime minister to ratify the Protocol. The ministry was further revising the proposal at the close of the reporting period.

TRAFFICKING PROFILE

As reported over the past five years, human traffickers exploit domestic and foreign victims in Nepal, and traffickers exploit victims from Nepal abroad. Traffickers exploit Nepali women and girls in sex trafficking and domestic servitude in Nepal; India; the Middle East, especially Gulf countries; Asia, and East Africa, including Kenya. Traffickers subject Nepali men, women, and children to forced labor in Nepal; India; the Middle East; Asia, including Malaysia and Japan; and Europe, including Portugal; on farms and in construction, factories, mines, domestic work, begging, and the adult entertainment industry. Some manpower agencies and individual agents engage in fraudulent recruitment practices and impose high fees to facilitate forced labor. Unregistered migrants—including the large number of young Nepali women who transit India or men and women who rely on unregistered recruitment agents—are particularly vulnerable to forced labor and sex trafficking. Some Nepali women who agree to arranged marriages through Nepali companies to men in China and South Korea may face fraud and domestic servitude. Traffickers subject some migrants who transit Nepal en route to the Middle East to human trafficking, including Bangladeshis and Sri Lankans who use falsified Nepali travel documents. Some government officials reportedly accept bribes to include false information in Nepali identity documents or provide fraudulent documents to prospective labor migrants, which allows recruiters to evade recruitment regulations. Traffickers reportedly take advantage of more relaxed pre-departure screenings at Kolkata and Chennai airports or bribe Indian officials in New Delhi and Mumbai to fly Nepali migrant workers to third countries without proper documentation, which increases the workers’ vulnerability to trafficking. Traffickers also transport Nepali labor trafficking victims through Sri Lanka and Burma en route to destination countries.

Within Nepal, bonded labor of adults and children exists in agriculture, brick kilns, the stone-breaking industry, and domestic work. While government officials denied children regularly worked in brick kilns, NGOs continued to report children carrying loads, preparing bricks, and performing other tasks at kilns for extended periods. Traffickers subject Nepali and Indian children to forced labor in the embroidered textile, or zari, industry, as well as in carpet factories and stone quarrying. Traffickers increasingly subject Nepali girls and boys to sex trafficking in Nepal on the streets and in the AES, including dance bars, massage parlors, and cabin “restaurants,” a type of brothel. Sex trafficking of Nepali women and girls increasingly takes place in private apartments, rented rooms, guesthouses, and restaurants. Traffickers subject transgender persons to sex trafficking in Nepal. Police report an increasing trend of AES businesses recruiting Nepali female employees for work abroad in the same sector, which increases vulnerability to sex trafficking abroad. NGOs alleged some police and political party leaders are complicit in sex trafficking because of their financial involvement in the AES. Traffickers exploit Nepal’s open border with India to transport Nepali women and children to India for sex trafficking, including under the guise of “orchestra dancers,” where girls dance at public functions and men exploit them in sex trafficking.

Under false promises of education and work opportunities, some Nepali parents give their children to brokers who instead take them to frequently unregistered children’s homes and force them to pretend to be orphans to garner donations from tourists and volunteers; some of these children are also forced to beg. Some tourists and volunteers, primarily from Western countries, exploit these children in child sex tourism. NGOs reported some owners of exploitative child institutions, including fake orphanages, use political connections to thwart child protective agencies and prosecution. Traffickers transport Rohingya girls from refugee camps in Bangladesh to Kathmandu for sex trafficking. Traffickers target young, poorly educated people from traditionally marginalized castes and ethnic minority communities and increasingly utilize social media and mobile technologies to lure their victims. Law enforcement reported victims’ families are sometimes complicit in their trafficking. Organized criminal networks engage in trafficking in some parts of the country. Many Nepalis whose homes or livelihood were destroyed by the 2015 earthquakes—especially women and children—remain vulnerable to trafficking. Approximately 11,000 Tibetans lack identity documents, which impedes them from legally working, studying, traveling, and accessing public services. Nepali law treats newly arrived asylum-seekers and UNHCR-recognized refugees as illegal immigrants and does not provide for government-issued identification; lack of documentation increases their vulnerability to trafficking.